K RAJENDRA PRASAD Vs. SOUTH INDIAN BANK

JUDGEMENT

(1.) CRP 188 of 1993 is by the judgment debtors in OS 51 of 1983 on the file of the Subordinate Judge's Court of Tellicherry. CRP 2340 of 1995 is by one of the judgment debtors in OS 170 of 1988 on the file of the Subordinate Judge's Court of Cochin. Both the suits were filed by banks for recovery of amounts due to them from the respective judgment debtors. Both the suits were for recovery of the amounts due by sale of the mortgaged properties. Composite decrees were passed in terms of O.34 of the Code of Civil Procedure as adopted in Kerala. The properties were brought to sale on failure of the mortgagors to deposit the amounts due to the mortgagee in time or within the extended time granted by the court in that behalf. After the properties were sold but before the sale were confirmed, the judgment debtors purported to file applications seeking redemption of the respective mortgages on the assertion that they are entitled to redeem the mortgages at any time before confirmation of the sale. These applications were opposed by the decree holders as well as by the auction purchaser. They contended that on the scheme of O.34 of the Code of Civil Procedure as adopted in Kerala, there was no right in the mortgagors to deposit or pay the amounts due to the mortgagee including the poundage and that these applications were liable to be dismissed. The executing court in both the cases accepted that plea and dismissed the applications made by the judgment debtors-mortgagors. These orders are questioned in these revision petitions. When CRP 2340 of 1995 came up before the learned Single Judge, it was contended that notwithstanding the scheme of O.34 of the Code of Civil Procedure as adopted in Kerala, the mortgagors had the right under O.34 of the Code of Civil Procedure as it continues to exist in the Code of Civil Procedure enacted by the Parliament, the right to tender the mortgage money and the other sums at any time before confirmation of the sale in exercise of their right of redemption and the said right is not taken away by anything contained in the Order as adopted in Kerala. The learned Single Judge having felt that the question raised is of sufficient importance referred the revision for being heard by a Division Bench. Since identical question was sought to be raised in CRP 188 of 1993 also, that revision was also posted along with CRP 2340 of 1995 and both the revisions were heard.

(2.) As far as Kerala State is concerned, by exercise of power under S.122 of the Code of Civil Procedure O.34 of the Central Code (called so for convenience) was amended in the year 1974. Serious departure was made in that amendment by dispensing with the need for passing a preliminary decree and thereafter a final decree for sale and giving power to the court to pass a composite decree with a right in the court to grant time to that mortgagor to pay off the mortgage money and to extend the time for making the payment before holding the sale. When in the year 1976 Amendment Act 104 of 1976 was passed by the Parliament, controversy arose whether the amendment adopted in 1974 in Kerala will continue to be available or whether the Code of Civil Procedure as amended by Amendment Act 104 of 1976 would prevail. A learned Single Judge held in SBT v. Balakrishnan ( 1990 (1) KLT 391 ) that a composite decree for sale of the property after the enactment of O.34 by Amendment Act 104 of 1976 could not be passed under O.34 of the Code as adopted by the High Court in the year 1974. The learned Judge in fact held that O.34 as amended by the High Court stood repealed. Considerable controversy was generated on this aspect. Apparently to settle that controversy, what was done was that O.34 of the Code was again re-adopted in terms of S.122 of the Code of Civil Procedure with effect from 20.11.1990. In other words, O.34 of the Code as is now available in Kerala was re-adopted with effect from 20.11.1990, subsequent to the coming into force of Amendment Act 104 of 1976.

(3.) Whereas in O.S. 170 of 1988 giving rise to CRP 2430 of 1995 the application made by the judgment debtors was dismissed on the ground that the deposit was made out of time, in OS 51 of 1983 giving rise to CRP 188 of 1993 the application was dismissed on the ground that the application was made after the confirmation of the sale. If the position adopted by the executing Court in O.S. 51 of 1983 were to be correct, CRP 188 of 1993 may have to be dismissed whatever may be our conclusion on the question of the entitlement of the mortgagor-judgment debtor to seek redemption at any time before confirmation of the sale.